Gul v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 1, 2011 Decided July 22, 2011

No. 10-5117

NAZUL GUL,
APPELLANT

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF
AMERICA, ET AL.,
APPELLEES

Consolidated with 10-5118

Appeals from the United States District Court
for the District of Columbia
(Nos. 1:05-cv-00888, 1:05-cv-01009)

Stephen R. Sady, Chief Deputy Federal Public Defender,
Federal Public Defender for the District of Oregon, argued the
cause for appellants. With him on the briefs were Steven T.
Wax, Federal Public Defender, and Amy Baggio, Assistant
Federal Public Defender.

Tony West, Assistant Attorney General, U.S. Department
of Justice, argued the cause for appellees. With him on the
 2
brief were Robert M. Loeb and Benjamin S. Kingsley,
Attorneys.

Before: GINSBURG, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: The United States detained
Nazul Gul and Adel Hamad for several years at the Naval
Base at Guantanamo Bay. During that time, each filed with
the district court a petition for a writ of habeas corpus. Prior
to any hearing on the merits of their petitions, however, the
United States transferred the detainees to the custody of
foreign sovereigns; it did not then rescind, nor has it since
rescinded, their designation as “enemy combatants.”

In an effort to refute the allegations levied against them
and to have that designation rescinded, Gul and Hamad want
to continue litigating their habeas petitions. Because they are
no longer held by the United States, however, the district
court dismissed their petitions as moot and hence beyond the
court’s jurisdiction under Article III of the Constitution of the
United States. Gul and Hamad appeal, arguing among other
things that their petitions are not moot because they continue
to be burdened by the collateral consequences of their prior
detention and continuing designation. Having determined the
appellants identify no injury sufficient to bring their cases
within the court’s jurisdiction under Article III, we affirm the
order of the district court.

I. Background

Pakistani forces arrested Hamad in Pakistan in 2002;
American forces arrested Gul in Afghanistan in 2003. The
 3
United States transferred both men to the Naval Base at
Guantanamo Bay.

While detained, each filed in the district court a petition
for a writ of habeas corpus seeking his immediate release.
There being some doubt about its jurisdiction to hear those
petitions, the district court stayed both cases pending
resolution of the uncertainty by the Court of Appeals. See
Detainee Treatment Act of 2005, Pub. L. No. 109-148,
§ 1005(e), 119 Stat. 2680, 2742–43 (codified at 10 U.S.C.
§ 801 note) (limiting scope of judicial relief available to
detainees at Guantanamo Bay and vesting jurisdiction
exclusively in D.C. Circuit); Military Commissions Act of
2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2635–36
(amending 28 U.S.C. § 2241(e)) (stripping federal courts of
jurisdiction to “consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the United
States who has been determined by the United States to have
been properly detained as an enemy combatant or is awaiting
such determination”).

In 2007, without substantive action having been taken in
either case, the United States notified Gul and Hamad they
had been “approved to leave Guantanamo.” The notice stated
approval to leave “does not equate to a determination that [the
detainee] is not an enemy combatant, nor is it a determination
that he does not pose a threat to the United States.”

In accordance with the notice, Gul was transferred to
Afghanistan in March 2007, after which the district court sua
sponte dismissed his petition as moot. Gul promptly moved
for reconsideration of the order of dismissal but his motion
was not immediately resolved.
 4
Hamad was transferred to Sudan in December 2007. The
court took no further action on his petition until 2008, when
the Supreme Court issued Boumediene v. Bush, 553 U.S. 723.

The district court then consolidated proceedings in all
Guantanamo Bay cases and the presiding judge ordered all
former detainees who had been transferred out of
Guantanamo, but who still had habeas petitions pending, to
submit a consolidated brief addressing the issue of mootness.
On April 1, 2010, after briefing was complete, the district
judge dismissed in a single order all cases captioned in the
consolidated brief.* See In re Petitioners Seeking Habeas
Corpus Relief In Relation to Prior Detentions at Guantanamo
Bay, 700 F. Supp. 2d 119, 137.

II. Analysis

Gul and Hamad claim their petitions are not moot and the
district court made certain procedural errors in reaching the
contrary conclusion. Specifically, they argue the district court
(1) misapplied the collateral consequences doctrine, (2)
improperly shifted to them the burden of showing their cases
present a live controversy, (3) failed adequately to consider
the facts of their individual cases, and (4) failed to abide the
provision of 28 U.S.C. § 2243 requiring courts to dispose of a
habeas petition as “law and justice require.” We address de
novo these issues of law, see Del Monte Fresh Produce Co. v.
United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (question
of mootness reviewed de novo), and affirm the order of the
district court.

*
In all, two district judges dismissed the petitions of more than 100
former detainees, 15 of whom appealed. We granted the
Government’s motion to consolidate as to these two cases and held
the other 13 in abeyance pending this decision.
 5
A. The Collateral Consequences Doctrine

In arguing for reversal, Gul and Hamad rely first and
foremost upon the collateral consequences doctrine. The
doctrine dates back at least to Carafas v. LaVallee, 391 U.S.
234 (1968), which the Supreme Court heard after a state
prisoner, who had petitioned for a writ of habeas corpus, had
completed his term of incarceration and been discharged from
parole, id. at 236. The state argued the Court lacked
jurisdiction to hear the petition because the petitioner’s
release from custody and his subsequent completion of parole
terminated any injury caused by his unlawful confinement; his
case, that is, was moot. Id. at 236–37. The Supreme Court
observed that as a “consequence of his conviction, [the
petitioner] cannot engage in certain businesses; he cannot
serve as an official of a labor union for a specified period of
time; he cannot vote in any election held in New York State;
[and] he cannot serve as a juror.” Id. at 237 (footnotes
omitted). Because of these “disabilities or burdens,” the
Court held the petitioner had “a substantial stake in the
judgment of conviction which survives the satisfaction of the
sentence imposed on him.” Id. (internal quotation marks
omitted).

A few weeks later the Supreme Court determined a
former prisoner challenging his conviction should be
presumed to present a justiciable case, for it is an “obvious
fact of life that most criminal convictions do in fact entail
adverse collateral legal consequences.” Sibron v. New York,
392 U.S. 40, 55 (1968). A government could rebut this
presumption only if it could show there was “no possibility
that any collateral legal consequences [would] be imposed on
the basis of the challenged conviction.” Id. at 57.
 6
Gul and Hamad argue a former detainee who remains
designated an enemy combatant should likewise be presumed
to have a justiciable case. They deem it “obvious” the
consequences facing such an individual are tantamount to
those facing a person convicted of a crime and, therefore, they
disclaim any obligation to identify a specific collateral
consequence they face before the district court proceeds with
the merits of their claims.

Alternatively, Gul and Hamad argue they have shown
they continue to experience concrete adverse consequences
from their prior detention. As a result of being designated
enemy combatants, they argue: (i) the governments of
Afghanistan and Sudan, respectively, have imposed travel
restrictions upon them; (ii) they are prohibited from entering
the United States; (iii) they are subject under the Laws of War
to the possibility of re-arrest, capture, detention, and
extrajudicial killing by the United States; and (iv) their
reputations have been damaged.

The Government responds by noting it is not yet
established whether the collateral consequences doctrine
applies to a habeas petition filed by a former detainee. It
contends the doctrine is not applicable, and a detainee who is
no longer in U.S. custody should be foreclosed from arguing
his petition is not moot, because habeas is at its “core” about
remedying unlawful detention. The Government offers two
arguments to support this position. First, the Government
argues the collateral consequences doctrine derives from 28
U.S.C. § 2241 and is therefore not available to a detainee who
is, it says, entitled only to those habeas rights protected by the
 7
Suspension Clause of the Constitution.* Second, citing Munaf
v. Geren, 553 U.S. 674 (2008), the Government points out
equitable considerations, particularly principles of comity
with foreign sovereigns, may in some circumstances provide
legitimate reason to restrict the availability of the writ to
current detainees and, by parity of reasoning, to former
detainees as well.

Even if a former detainee’s habeas petition may present a
live controversy, the Government maintains, the present
appellants’ petitions must be dismissed: First, it says, a
former detainee should not be presumed to face collateral
consequences because the types of “disabilities and burdens”
identified in Carafas and its sequelae do not attend “detainees
held under the laws of war.” Second, the Government argues
none of the particular consequences by which Gul and Hamad
claim to be burdened is sufficient to meet the injury
component of the case-or-controversy requirement of Article
III.

Assuming without deciding the collateral consequences
doctrine applies to a habeas petition filed by a detainee, we
agree with the Government that the doctrine does not save
from mootness the petitions filed in these cases.

1. No Presumption of Collateral Consequences

The Supreme Court has cautioned against extension of
the presumption of collateral consequences. In Spencer v.
Kemna, 523 U.S. 1 (1998), a parole violator had been sent
back to prison to serve the remainder of his term; he

*
But see Kiyemba v. Obama, 561 F.3d 509, 512 & n.2 (D.C. Cir.
2009) (rejecting distinction between “core” and “ancillary” habeas
rights and holding detainee’s habeas petition arises under § 2241).
 8
petitioned for habeas to challenge the revocation of his parole,
but he had completed his sentence before the merits of his
petition were heard. The Court recognized it had “[i]n recent
decades ... been willing to presume that a wrongful criminal
conviction has continuing collateral consequences” but, it
pointed out, before erecting that presumption it had in a
number of cases always:

required collateral consequences of conviction
to be specifically identified, and ... accepted as
sufficient to satisfy the case-or-controversy
requirement only concrete disadvantages or
disabilities that had in fact occurred, that were
imminently threatened, or that were imposed
as a matter of law ....

Id. at 8. Because the Court could not similarly discern
whether and to what extent similarly concrete consequences
attach to an order revoking parole, it held the presumption
should not be applied to a convict who contested such an
order. Id. at 12 (quoting Lane v. Williams, 455 U.S. 624, 632
(1982)). The convict must instead prove revocation of his
parole had a continuing consequence “adequate to meet
Article III’s injury-in-fact requirement.” Id. at 14.

The Court gave three prudential reasons for its
conclusion. First, presuming or accepting “the remote
possibility of collateral consequences ... sits uncomfortably
beside the long-settled principle that standing cannot be
inferred argumentatively from averments in the pleadings, but
rather must affirmatively appear in the record.” Id. at 10–11
(internal quotation marks omitted). Second, the presumption
of collateral consequences had been “developed during an era
in which it was thought that the only function of the
constitutional requirement of standing was to assure that
 9
concrete adverseness which sharpens the presentation of
issues,” a view which “has since yielded to the
acknowledgement that the constitutional requirement is a
means of defining the role assigned to the judiciary in a
tripartite allocation of power.” Id. at 11–12 (internal
quotation marks and alterations omitted). And third, it was
not clear a presumption of significant collateral consequences
from revocation of parole would “comport with reality.” Id.
at 12.

These prudential considerations apply with equal force to
the circumstances presented here. The first is, of course,
always applicable to a claim that collateral consequences
should be presumed rather than proved. As for the second,
the Supreme Court was hesitant to extend the presumption to
an order revoking parole because the case-or-controversy
requirement is a bulwark supporting the separation of powers.
As this litigation involves individuals seized on a battlefield
and now in the custody of a foreign sovereign, applying the
presumption here could infringe upon the domain of the
branches of government responsible for the external relations
of the Nation. Finally, as to the Court’s concern that the
presumption not outrun the reality of collateral consequences,
we note detention at Guantanamo and designation as an
enemy combatant are recent phenomena; we have no basis for
inferring they routinely have collateral consequences.

In sum, we cannot merely presume a former detainee
faces collateral consequences sufficient to keep his petition
from becoming moot upon his release. A former detainee,
like an individual challenging his parole, must instead make
an actual showing his prior detention or continued designation
burdens him with “concrete injuries.” Id. at 14.
 10
2. The Consequences Identified Are Insufficient

Put to their proof, Gul and Hamad claim to face five
concrete consequences because of their prior detention and
continued designation. Bearing in mind that the Judicial
Power vested in federal courts by Article III “exists only to
redress or otherwise to protect against injury to the
complaining party,” Warth v. Seldin, 422 U.S. 490, 499
(1975), we cannot agree with the appellants: As we explain
below, either the court cannot redress the particular harms Gul
and Hamad allege or such harms are too speculative to sustain
the exercise of federal jurisdiction. See Spencer, 523 U.S. at
14–16 (rejecting alleged collateral consequences of parole
revocation because not concrete, “attributable” to revocation,
or redressable by habeas: “as to the possibility that the parole
revocation could be used directly against petitioner should he
be the object of a criminal prosecution, it is at least as likely
that the conduct underlying the revocation, rather than the
revocation itself ... would be used”).

a. Travel Restrictions

Gul and Hamad claim that because they remain
designated enemy combatants, the Afghan and Sudanese
Governments have restricted their ability to travel either by
refusing them passports or by monitoring their movements.
Assuming these allegations are true, the harm does not meet
the case-or-controversy requirement because it is caused not
by a party before the court but by a stranger to the case, and is
therefore beyond the power of the court to redress. See Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–43 (1976) (the
case-or-controversy limitation of Article III “requires that a
federal court act only to redress injury that fairly can be traced
to the challenged action of the defendant, and not injury that
 11
results from the independent action of some third party not
before the court”).

The Government has submitted declarations explaining
that when a detainee is transferred out of Guantanamo, he is
“transferred entirely to the custody and control of the
[receiving] government.” We credit that declaration.*
Kiyemba v. Obama, 561 F.3d 509, 515 n.7 (D.C. Cir. 2009).
It follows that any travel restrictions imposed upon Gul and
Hamad are traceable to the act of a foreign sovereign, and that
any decision to lift those restrictions will depend upon an
“exercise of broad and legitimate discretion [a] court[] cannot
presume either to control or to predict.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 562 (1992). Gul and Hamad argue
they seek to compel only the United States Government, and
point out that we might order the Government to take all steps
within its power to alleviate their injury. Reframing the
remedy that way, however, does not alter the nature of the

*
To the extent the appellants are arguing travel restrictions subject
them to constructive “custody,” see 28 U.S.C. § 2241(c) (a writ of
habeas corpus shall not issue unless the petitioner “is in custody
under or by color of the authority of the United States”), and,
therefore, they continue to present justiciable cases without regard
to the collateral consequences doctrine, we reject that argument
because the Government’s declarations make clear that Gul and
Hamad are no longer in the custody of the United States. Decl. of
Sandra L. Hodgkinson, Dep’y Asst. Sec’y of Defense for Detainee
Affairs ¶ 5, July 9, 2008; Decl. of Lt. Col. David F. Koonce,
Director, Detainee Capabilities Directorate for the Combined
Security Transition Command-Afghanistan ¶¶ 3-8, Oct. 31, 2008.
We also reject the appellants’ argument terms in Gul’s and
Hamad’s transfer agreements, which require the receiving
Government to monitor the former detainees, somehow contradict
the fact that once they are transferred the detainees are no longer in
the custody of the United States.
 12
injury claimed and therefore does not cure our lack of
jurisdiction.

Gul and Hamad also argue they face travel restrictions of
another sort, chargeable exclusively to the United States: As
long as they are designated enemy combatants, they will be
on the “No Fly List” and subject to a provision of the
immigration code prohibiting any individual who has
“engaged in terrorism” from entering the United States.
Relying upon decisions permitting a deported alien to
challenge his deportation after he has left U.S. custody, Gul
and Hamad argue their inability to enter the United States
likewise gives them a justiciable case or controversy.

As an initial matter, we point out there is no evidence in
the record suggesting either Gul or Hamad actually wishes to
enter the United States; the likelihood of either actually
incurring the injury alleged is therefore exceedingly remote.
In any event, the analogy upon which the appellants rely is
flawed: The deported alien faces collateral consequences
because domestic law either bars him permanently from the
United States or requires him to wait some period of years
before seeking re-entry, 8 U.S.C. § 1182(9)(A), and an order
granting the deported alien a writ of habeas corpus and
vacating his order of deportation would necessarily remove
that barrier. See, e.g., Zegarra-Gomez v. INS, 314 F.3d 1124,
1127 (9th Cir. 2003). An order granting a former detainee’s
habeas petition would not remove the statutory barriers to
entry that exclude him.

First, “any individual who was a detainee held at
... Guantanamo Bay” must be included on the No Fly List. 49
U.S.C. § 44903(j)(2)(C)(v). Gul and Hamad will accordingly
be barred from flights entering the United States regardless
whether a court declares they were unlawfully detained. An
 13
order granting a detainee’s habeas petition would not mean
his exoneration, nor would it be a determination he does not
pose a threat to American interests; it would mean only that
the Government has not proven the detainee more likely than
not “materially support[ed]” or was a “part of” a force
associated with al Qaeda or the Taliban. See Authorization
for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115
Stat. 224, 224 (2001) (reprinted at 50 U.S.C. § 1541 note); Al-
Bihani v. Obama, 590 F.3d 866, 872–74 (D.C. Cir. 2010)
(AUMF authorizes President to detain any individual who is a
“part of forces associated with Al Qaeda or the Taliban or
those who purposefully and materially support such forces in
hostilities against U.S. Coalition partners”). The Congress
has provided by statute that apprehension by the military and
transfer to Guantanamo is sufficient indicium of threat to
require placing a former detainee upon the No Fly List. A
decision on the merits of a former detainee’s petition would
not affect the barrier imposed by that law. See Kiyemba v.
Obama, 605 F.3d 1046, 1048 (2010) (“it is within the
exclusive power of the political branches to decide which
aliens may, and which aliens may not, enter the Unites States,
and on what terms” (internal quotation marks omitted)).*

*
Gul and Hamad suggest in a skeletal footnote in their reply brief
that for the Government to keep them on the No Fly List after they
have been granted a writ of habeas corpus would violate their
constitutional rights, “including due process, equal protection, and
bill of attainder protections.” To bolster their argument that being
on the No Fly List is a collateral consequence, they note “assertion
of those rights would have to first be predicated on a judicial
determination that the designation and incarceration were
unlawful.” Even if a favorable habeas ruling might marginally
improve the appellants’ prospects in a hypothetical constitutional
challenge to the statute as applied to them, those prospects are far
too speculative to make their being listed a collateral consequence.
 14
Nor can we redress any injury that might arise from the
statute denying entry into the United States to anyone who
“has engaged in a terrorist activity ... is a member of a
terrorist organization ... [or] has received military-type
training ... from or on behalf of [one].” 8 U.S.C.
§ 1182(a)(3)(B). Although the legality of detention might be
relevant to the Executive’s determination under § 1182(a)(3)(B),
as the Government points out, that determination “involves a
separate legal standard than the question of whether an
individual was detainable”; “there are a number of factors in the
immigration laws which [the Government] look[s] at in order to
determine whether someone is excludable” and designation as an
enemy combatant, unlike involvement with terrorism, “is not
one of them.” Therefore, the possibility the appellants will be
denied entry into this country because of their prior detention
or continuing designation, even if it were imminent, is too
speculative to sustain the exercise of our jurisdiction. See
Lane, 455 U.S. at 633 n.13 (where prior parole violation does
not automatically make individual ineligible for future parole
but is instead “simply one factor, among many, that may be
considered by the parole authority,” possibility parole will be
denied after future conviction is insufficiently concrete to
constitute injury meeting case-or-controversy requirement);
Spencer, 523 U.S. at 16 (adverse “discretionary decision[s]”
are not “collateral consequences” of parole violation).

Gul and Hamad also note that because they are
designated enemy combatants they may be unable to enter or
seek asylum in countries with laws similar to those of the
United States. Surely, however, if a purported injury
attributable to domestic immigration laws is too speculative to
give the court jurisdiction, any claimed injury that might arise
from the immigration laws of any other country must be as
well.
 15
b. Laws of War

Gul and Hamad next argue that because they are
designated enemy combatants, the United States does not
consider them “civilians” and, therefore, under the laws of
war, it may recapture, again detain, and even kill them. This
claim of injury is the most speculative of all: The appellants
apparently have no basis whatsoever for believing the
Government might pursue them because of their continuing
designation (or for that matter, any other reason). Indeed, the
Government no longer attaches any legal significance to the
term “enemy combatant.” See Press Release, Dep’t of Justice,
Department of Justice Withdraws “Enemy Combatant”
Definition for Guantanamo Detainees (Mar. 13, 2009);
Respondent’s Memorandum Regarding the Government’s
Detention Authority Relative to Detainees Held at
Guantanamo Bay, In re Guantanamo Bay Detainee Litig., No.
08-442 (D.D.C. Mar. 13, 2009) (discussing scope of
Executive authority to detain without reference to term
“enemy combatant”).

c. Stigma

Gul and Hamad last claim that because they are
designated enemy combatants they have suffered, and will
continue to suffer, reputational harm. They argue
stigmatization is alone consequence enough to establish their
petitions are not moot, but our precedent forecloses their
argument: “In this circuit, when injury to reputation is
alleged as a secondary effect of an otherwise moot action, we
[require] some tangible concrete effect ... susceptible to
judicial correction” before we assert jurisdiction. McBryde v.
Comm. to Rev. Circuit Council Conduct, 264 F.3d 52, 57
(2001) (internal quotation marks omitted); see also Spencer,
523 U.S. at 16 n.8 (dictum) (rejecting dissent’s suggestion “a
 16
finding that an individual has committed a serious felony
renders the interest in vindicating reputation constitutionally
[s]ufficient to avoid mootness” (internal quotation marks and
alterations omitted)). As this case demonstrates, the label
“enemy combatant” brings with it neither a “concrete effect”
nor a “civil disability” susceptible to judicial correction.
Hence, we cannot order the Government to rescind the
appellants’ designation.

B. Other Claimed Errors

Gul and Hamad also raise a number of procedural
arguments pertaining to the district court’s handling of their
petitions. None has merit.

1. Burden of Proof

Gul and Hamad first argue the district court erred by
placing upon them the burden of showing their petitions
present a live controversy rather than placing upon the
Government the burden of showing the petitions are moot. In
placing the burden to demonstrate collateral consequences
upon the appellants, however, the district court recognized “it
is the burden of the party who seeks the exercise of
jurisdiction in his favor, clearly to allege facts demonstrating
that he is a proper party to invoke judicial resolution of the
dispute.” Spencer, 523 U.S. at 11 (internal quotation marks
omitted); see In re Petitioners Seeking Habeas Corpus Relief,
700 F. Supp. 2d at 129–30 & n.5. Although the appellants
made the necessary showing when they filed their petitions 
for they were then detained at Guantanamo and so alleged 
once they left U.S. custody that showing no longer sufficed.
As no continuing injury is to be presumed, see Part II.A.1, the
burden of demonstrating jurisdiction is properly borne by the
appellants. See Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th
 17
Cir. 2004) (Supreme Court in Spencer explained: “for a court
to exercise habeas jurisdiction over a petitioner no longer in
custody, the petitioner must demonstrate ... his subsequent
release has not rendered the petition moot”). The district
court did not err by so holding.

2. Individualized Consideration

Gul and Hamad next argue the district court, by requiring
all former detainees to join in one consolidated brief, failed to
consider the individual facts of each detainee’s case. What
the district court did to deal with the petitions of more than
100 detainees on the same basic issue is of no moment any
more. Gul and Hamad have been fully heard in this court and
have raised no individual issue sufficient to establish their
cases are not moot.

3. Equitable Concerns

Gul and Hamad last argue that in view of the mandate
requiring the court to dispose of a petition for a writ of habeas
as “law and justice require,” 28 U.S.C. § 2243, the district
court erred by failing adequately to consider equitable factors
bearing upon whether their petitions should be dismissed as
moot. In particular, they argue (1) if they are permitted to
proceed, then they will establish their prior detention was
unlawful whereas (2) if they may not proceed, then the
Government will be unjustly benefitted for having caused the
district court not to reach the merits of their petitions before
their release by, for example, refusing to proceed with
discovery while the jurisdictional issues surrounding the
enactment of the DTA and the MCA were resolved.

The appellants indeed were denied a forum in which to
bring their habeas petitions for a prolonged period before the
 18
Supreme Court assured them of one in Boumediene.
Regardless of the equity that delay might afford the
appellants, “mootness, however it may have come about,
simply deprives us of our power to act.” Spencer, 523 U.S. at
18 (rejecting habeas petitioner’s argument that “even if his
case is moot, that fact should be ignored because it was
caused by the dilatory tactics of [government officials] and
the delay of the District Court”). Equity is not a substitute for
meeting the requirements of Article III.

III. Conclusion

Gul and Hamad have not identified any collateral
consequence sufficient to show their petitions for a writ of
habeas corpus are not moot. Therefore, the judgment of the
district court is
Affirmed.